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this transition between twentieth-century models for doing business
and twenty-first-century technologies.
The answer begins with recognizing that there are different “problems”
here to solve. Let’s start with type D content—uncopyrighted
content or copyrighted content that the artist wants shared.The “problem”
with this content is to make sure that the technology that would
enable this kind of sharing is not rendered illegal. You can think of it
this way: Pay phones are used to deliver ransom demands, no doubt.
But there are many who need to use pay phones who have nothing to
do with ransoms. It would be wrong to ban pay phones in order to
eliminate kidnapping.
Type C content raises a different “problem.” This is content that was,
at one time, published and is no longer available. It may be unavailable
because the artist is no longer valuable enough for the record label he
signed with to carry his work. Or it may be unavailable because the work
is forgotten. Either way, the aim of the law should be to facilitate the access
to this content, ideally in a way that returns something to the artist.
Again, the model here is the used book store. Once a book goes out
of print, it may still be available in libraries and used book stores. But
libraries and used book stores don’t pay the copyright owner when
someone reads or buys an out-of-print book.That makes total sense, of
course, since any other system would be so burdensome as to eliminate
the possibility of used book stores’ existing. But from the author’s perspective,
this “sharing” of his content without his being compensated is
less than ideal.
The model of used book stores suggests that the law could simply
deem out-of-print music fair game. If the publisher does not make
copies of the music available for sale, then commercial and noncommercial
providers would be free, under this rule, to “share” that content,
even though the sharing involved making a copy. The copy here would
be incidental to the trade; in a context where commercial publishing
has ended, trading music should be as free as trading books.
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